Citation Nr: 1409661
Decision Date: 03/11/14 Archive Date: 03/20/14
DOCKET NO. 10-00 991 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Houston, Texas
THE ISSUES
1. Entitlement to an initial disability rating (evaluation) in excess of 30 percent for posttraumatic stress disorder (PTSD), for accrued benefits purposes.
2. Entitlement to service connection for skin rash of the feet and body (hereinafter "skin disorder"), to include as being the result of exposure to herbicide agents, for accrued benefits purposes.
3. Entitlement to service connection for migraine headaches, for accrued benefits purposes.
REPRESENTATION
Appellant represented by: Texas Veterans Commission
WITNESSES AT HEARING ON APPEAL
Appellant (Veteran's spouse); Veteran
ATTORNEY FOR THE BOARD
Patricia Kingery, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1964 to July 1966, and from April 1970 to April 1972. While his claim was pending, the Veteran died in December 2013. The appellant is the Veteran's surviving spouse and is pursuing the appeal as a substituted claimant under the provisions of 38 U.S.C.A. § 5121A (West 2002).
This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas.
38 U.S.C.A § 5121A allows a substitution in the case of the death of a claimant who dies on or after October 10, 2008. This change in law permits any living person who would be eligible to receive accrued benefits, to process any pending claim if a Veteran dies prior to completion. The eligible person must, not later than one year after the date of death, file a request to be substituted as the claimant for the purposes of processing any pending claim to completion. 38 U.S.C.A. § 5121A (West 2002 & Supp. 2013). A veteran's surviving spouse is eligible for receipt of accrued benefits. 38 U.S.C.A. § 5121 (West 2002 & Supp. 2013); 38 C.F.R. § 3.1000 (2013). Generally an eligible party seeking substitution in an appeal that has been dismissed by the Board due to the death of the Veteran should file a request for substitution with the VA RO from which the claim originated. See Fast Letter 10-30 (Aug. 10, 2010) (if the original claimant dies on or after the date the appeal was certified and transferred to the Board, but before the Board issues a decision on the appeal, the Board will dismiss the appeal and return the file to the Agency of Original Jurisdiction (AOJ), and the AOJ will make a determination in the first instance regarding eligibility for substitution). The purpose of this administrative procedure is to insure that an appellant is a qualified "accrued benefits claimant" so as to be eligible for substitution.
In January 2014, the appellant (the Veteran's spouse) filed a VA Form 21-0847, Request for Substitution of Claimant upon Death of Claimant. The record in this case contains credible evidence that the appellant was married to the Veteran at the time of his death. See August 1976 marriage license. While the RO has yet to make a determination as to the appellant's actual eligibility to substitute in the appeal, the evidence of record shows that the appellant is the Veteran's surviving spouse (and thus eligible to substitute as the claimant for the purposes of completing the appeal). In this case, the record already establishes that the appellant is an accrued benefits claimant who is eligible for substitution under 38 U.S.C.A. § 5121A; therefore, the requirement of sending the claim to the RO to verify that the appellant is an eligible accrued benefits claimant has been rendered moot, such that sending the case to the RO for such verification would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant).
In December 2013, the appellant and the Veteran testified before the undersigned Veterans Law Judge at Board hearing in San Antonio, Texas. A copy of the hearing transcript is associated with the claims file.
The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence.
The issues of Dependence and Indemnity Compensation (DIC), to include service connection for the cause of death (38 U.S.C.A. § 1310), and entitlement to burial benefits have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action.
FINDINGS OF FACT
1. The Veteran died in December 2013; the appellant is the Veteran's surviving spouse, who was substituted as the claimant to continue the Veteran's pending claims and appeal to completion.
2. The Veteran served in the Republic of Vietnam during the Vietnam Era and is presumed to have been exposed during such service to a herbicide agent, to include Agent Orange.
3. For the entire initial rating period, the Veteran's PTSD was manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others, causing further isolation; flattened affect; chronic sleep impairment; irritability; difficulty concentrating; panic attacks occurring weekly; moderate memory impairment; suspiciousness; depressed mood; anxiety; disturbances of motivation and mood; and difficulty establishing and maintaining social relationships.
4. The Veteran experienced migraine headaches and a skin disorder in active service.
5. The Veteran's migraine headaches and skin disorder were incurred in active service.
CONCLUSIONS OF LAW
1. Resolving reasonable doubt in favor of the appellant, the criteria for an initial rating of 50 percent for PTSD have been met for the entire rating period, for accrued benefits purposes. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 5121A, 7105 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.1000, 4.3, 4.7, 4.130, Diagnostic Code 9433, 20.204 (2013).
2. Resolving reasonable doubt in favor of the appellant, the criteria for service connection for migraine headaches have been met, for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5121A (West 2002 & Supp. 2013);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2013).
3. Resolving reasonable doubt in favor of the appellant, the criteria for service connection for a skin disorder have been met, for accrued benefits purposes. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107, 5121A (West 2002 & Supp. 2013);
38 C.F.R. §§ 3.102, 3.159, 3.303, 3.1000 (2013).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Duties to Notify and to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). In the present case, the Board is granting the claims for service connection for migraine headaches and a skin disorder and a higher initial disability rating of 50 percent for PTSD for the entire appeal period. This decision constitutes a full grant of the benefits sought on appeal with regard to all issues. At the December 2013 Board hearing, the Veteran, his representative (who is now appellant's representative), and the appellant stipulated that a grant of a 50 percent disability rating would fully satisfy the appeal for a higher initial rating for PTSD; therefore, no further discussion regarding VCAA notice or assistance duties is required.
Entitlement to Accrued Benefits
The law provides that, upon the death of a veteran, a surviving spouse may be paid periodic monetary benefits to which the veteran was entitled at the time of the veteran's death, and which were due and unpaid for a period not to exceed two years, based on existing rating decisions or other evidence that was on file when he died. 38 U.S.C.A. § 5121; 38 C.F.R. § 3.1000. The application for accrued benefits must be filed within one year after the date of the veteran's death. 38 C.F.R. § 3.1000(c).
Claims for accrued benefits are derivative in nature, such that a "claimant's entitlement is based on [a] veteran's entitlement" to service connection. Zevalkink v. Brown, 102 F.3d 1236, 1242 (Fed Cir. 1996). The claim is based on evidence in the file at date of death, which means evidence in VA's possession on or before the date of the beneficiary's death, even if such evidence was not physically located in the VA claims folder on or before the date of death, in support of a claim for VA benefits pending on the date of death. 38 C.F.R. § 3.1000(d)(4).
In April 2008, during his life, the Veteran, in pertinent part, filed claims for service connection for PTSD, chronic migraines, and a skin disorder (claimed as chronic rashes, feet and body). In a July 2008 rating decision, in pertinent part, the RO granted service connection for PTSD, assigning an initial 30 percent disability rating, and denied service connection for a skin disorder and migraines. In September 2008, the Veteran filed a timely notice of disagreement that, in pertinent, disagreed with the 30 percent initially assigned rating for PTSD and the denial of service connection for a skin disorder and migraines. In October 2009, the RO issued a statement of the case, and the Veteran filed a substantive appeal (VA Form 9) in December 2009. The Veteran died in December 2013. The appellant, the Veteran's surviving spouse, filed a timely request to be substituted in the Veteran's appeal; therefore, the appellant is substituted in the Veteran's appeal, which includes the procedural aspects of the claims.
Initial Rating for PTSD
Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4 (2013). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1 (2013). Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2 (2013). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When, after careful consideration of the evidence, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3.
Where, as here, the question for consideration is the propriety of the initial evaluations assigned, evaluation of the evidence since the grant of service connection and consideration of the appropriateness of staged ratings is required whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered whether a staged rating is warranted; however, as the Board will discuss in more detail below, the Board finds that staged ratings for the service-connected PTSD is not appropriate in this case.
In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").
The Veteran was in receipt of a 30 percent disability rating for PTSD under Diagnostic Code 9411, which is rated under the general rating formula for mental disorders. See 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). Id.
A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped, speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id.
A 70 percent disability rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech that is intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id.
A 100 percent disability rating is assigned total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, or for the veteran's own occupation or name. Id.
The use of the term "such as" in the general rating formula for mental disorders in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). It is not required to find the presence of all, most, or even some, of the enumerated symptoms recited for particular ratings. Id. The use of the phrase "such symptoms as," followed by a list of examples, provides guidance as to the severity of the symptoms contemplated for each rating, in addition to permitting consideration of other symptoms particular to each veteran and disorder, and the effect of those symptoms on his/her social and work situation. Id.
In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (2013), the Federal Circuit held that VA "intended the General Rating Formula to provide a regulatory framework for placing veterans on a disability spectrum based upon their objectively observable symptoms." The Federal Circuit stated that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." It was further noted that "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."
Within the DSM-IV, one factor for consideration is the Global Assessment Functioning (GAF) score, which is a scale ranging from 1 to 100 and reflecting "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996). However, while the rating schedule does indicate that the rating agency must be familiar with the DSM-IV, it does not assign disability percentages based solely on GAF scores. See 38 C.F.R. § 4.130.
GAF scores from 71 to 80 reflect transient symptoms, if present, and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family arguments); resulting in no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind school work). DSM-IV at 46-47. GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. Id. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsession rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, inability to keep a job). Id. GAF scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech which is at times illogical, obscure, or irrelevant) or major impairment in several areas such as work or school, family relations, judgment, thinking, or mood (e.g., a depressed patient who avoids friends, neglects family, and is unable to do work). Id.
While pursuing the higher initial rating, the Veteran contended that the service-connected PTSD was worse than that contemplated by the 30 percent disability rating; thus, he asserted entitlement to a higher initial disability rating. In a December 2009 substantive appeal (VA Form 9), the Veteran contended the amount of medication he took for PTSD had doubled over the pendency of the appeal. At a December 2013 Board hearing, the Veteran testified that he had recently doubled the amount of medications he was taking for the PTSD. The Veteran testified that he had panic attacks at least once a week that lasted for 30 to 40 minutes. The Veteran testified that he had difficulty sleeping, racing thoughts, increased irritability, difficulty concentrating, depression, decreased energy and appetite, and memory loss. The Veteran testified that he did not have much enjoyment of life except for being with his spouse and that he did not have any friends. The Veteran testified that he was isolated, did not even want to visit other family members, and stayed at home.
Private treatment records from Dr. D.W. dated September 1997 through August 2008 indicate that the Veteran received treatment for depression and anxiety.
In June 2008, the Veteran underwent a VA examination. The Veteran reported having a good relationship with his spouse and children. The Veteran reported that he had difficulty being around other people, including taking a job that allowed him to be relatively isolated, he avoided social activities, and at times avoided contact even with family when he was feeling bad. The VA examiner recorded a history or made findings that included; persistent, markedly diminished interest or participation in significant activities; persistent feeling of detachment or estrangement from others, causing further isolation; flattened affect; persistent difficulty falling or staying asleep; persistent irritability; persistent difficulty concentrating; frequent depression; panic attacks occurring less than one time per week that cause severe anxiety; suspiciousness; and moderate memory impairment, with problems with retention of highly learned material, forgetting to complete tasks, forgetting things he has already done before, and frequently forgetting names and dates. The VA examiner assessed no suicidal or homicidal ideation. The Veteran was assigned a GAF score of 55. The VA examiner noted that the PTSD caused distress or impairment in social, occupational, or other areas of functioning.
In July 2012, the Veteran underwent another VA examination. The Veteran was assigned a GAF score of 61. The VA examiner noted occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The VA examiner noted symptoms including depressed mood; anxiety; panic attacks that occur weekly or less often; chronic sleep impairment; disturbances of motivation and mood; difficulty concentrating; markedly diminished interest or participation in significant activities; and irritability.
After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period, the Veteran's PTSD has been characterized by symptoms of markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others, causing further isolation; flattened affect; chronic sleep impairment; irritability; difficulty concentrating; panic attacks occurring weekly; moderate memory impairment; suspiciousness; depressed mood; anxiety; disturbances of motivation and mood; and difficulty establishing and maintaining social relationships, many symptoms of which are associated with the 50 percent rating. 38 C.F.R. § 4.130. Assignment of staged ratings has been considered, but found not to be applicable in this case. The Board finds that, throughout the entire initial rating period, the Veteran's PTSD symptoms result in occupational and social impairment with reduced reliability and productivity, which more nearly approximates the criteria for a 50 percent disability rating under Diagnostic Code 9433. 38 C.F.R. §§ 4.3, 4.7.
The Board has weighed and considered the GAF scores during the initial rating period, specifically the score of 55 assigned at a VA examiner in June 2008 and the 61 assigned by a VA examiner in July 2012. GAF scores from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships). DSM-IV at 46-47. GAF scores ranging from 51 to 60 reflect moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Id. Notwithstanding the GAF score of 61 (denoting mild symptoms), the Board finds that the GAF scores, when read together with the other evidence of record, reflect that the Veteran experienced occupational and social impairment with reduced reliability and productivity, more nearly approximating the criteria for a 50 percent disability rating under Diagnostic Code 9411. 38 C.F.R. § 4.130.
The Board further notes that the July 2012 VA examination report provides a specific assessment (occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks) of the level of occupational and social impairment due to the Veteran's PTSD, and identifies underlying symptomatology and impairments that caused the occupational and social impairment. The ultimate determination as to the level of occupational and social impairment is an adjudicative determination. The Board has considered the July 2012 VA examination report assessment on this question, but in light of the weight of the evidence of record showing that the Veteran's symptoms more nearly approximate occupational and social impairment with reduced reliability and productivity due to the service-connected PTSD, the Board finds that the July 2012 overall assessment as to degree of occupational and social impairment is of lesser probative value.
The appeal for a higher initial rating for PTSD is fully granted in this Board decision. At the December 2013 Board hearing, the Veteran's representative and the appellant both indicated that a 50 percent disability rating would satisfy the appeal as to this issue. See Hearing transcript p. 21. In an October 2013 written statement, through his representative, the Veteran contended that a 50 disability evaluation more closely described the severity of his PTSD symptoms; thus, this grant of a 50 percent disability rating is a full grant of the benefits sought on appeal as to this issue. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service-connected disability). The Board finds the Veteran's and appellant's waiver of the remaining aspects of the appeal for an initial rating for PTSD in excess of the 50 percent granted was knowing and intelligent, was made with representation and in the presence of his representative, and was supported by the Veteran's testimony and the evidence of record.
Because a 50 percent initial disability rating for PTSD is granted for the entire period of this appeal, the Veteran had limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed an initial rating in excess of 50 percent. See 38 C.F.R. § 20.204 (2013) (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). The appellant has been substituted in the Veteran's appeal; therefore, she acquired the procedural posture of the case at the time of the Veteran's death. For these reasons, any questions of an initial disability rating in excess of 50 percent are rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C.A. § 7104 (West 2002); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service-connected PTSD more closely approximates the criteria for a 50 percent rating under Diagnostic Code 9433 for the entire appeal period; therefore, the appeal is fully granted. 38 C.F.R. §§ 4.3, 4.7.
Extraschedular Consideration
The Board has considered whether referral for an extraschedular evaluation is warranted for the service-connected PTSD. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008).
Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id.
Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the service-connected PTSD are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria, Diagnostic Code 9411, specifically provide for disability ratings based on a combination of history and clinical findings. In this case, considering the lay and medical evidence, the Veteran's PTSD has been manifested by markedly diminished interest or participation in significant activities; feeling of detachment or estrangement from others, causing further isolation; flattened affect; chronic sleep impairment; irritability; difficulty concentrating; panic attacks occurring weekly; moderate memory impairment; suspiciousness; depressed mood; anxiety; disturbances of motivation and mood; and difficulty establishing and maintaining social relationships. These symptoms are part of the schedular rating criteria. The level of occupational and social impairment is explicitly part of the schedular rating criteria. The GAF scores are incorporated as part of the schedular rating criteria as they tend to show the overall severity of symptomatology or overall degree of impairment in occupational and social functioning. Moreover, all the Veteran's psychiatric symptomatology is contemplated by the schedular rating criteria, which rates by analogy psychiatric symptoms that are "like or similar to" those explicitly listed in the schedular rating criteria. Mauerhan at 443.
The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. "Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. In this case, the problems reported by the Veteran are specifically contemplated by the criteria discussed above, including the effect on his daily life. In the absence of exceptional factors associated with the service-connected PTSD, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).
In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) may be part of an increased rating claim when such claim is expressly raised by a veteran or reasonably raised by the record. At the June 2008 VA examination, the Veteran reported that he was currently working. At the December 2013 Board hearing, the Veteran stated that one of the reasons he quit work was because he had to take extra socks with him due to his skin disorder (which the Board is granting service connection for below). In a September 2008 written statement the Veteran contended that he missed a lot of days at work because of headaches (which the Board is granting service connection for below). However, the Veteran has not contended that he is unemployed because of his service-connected disabilities, and the other evidence of record does not indicate anything to the contrary. Thus, the Board finds that Rice is inapplicable because neither the Veteran nor the evidence suggested unemployability due to the service-connected disabilities.
Service Connection for a Skin Disability and Migraine Headaches
for Accrued Benefits Purposes
Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110; 38 C.F.R. § 3.303(a) (2013). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection for a disability requires evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred in or aggravated by service. See Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009).
In this case, the Veteran had been diagnosed with migraine headaches and an unspecified disorder of the skin, neither of which is listed as a "chronic disease" under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) do not apply to these claims.
In order to establish presumptive service connection for a disease associated with exposure to certain herbicide agents, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service, a veteran must show the following: (1) that he served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975; (2) that he currently suffers from a disease associated with exposure to certain herbicide agents enumerated under 38 C.F.R. § 3.309(e); and (3) that the current disease process manifested to a degree of 10 percent or more within the specified time period prescribed in section 3.307(a)(6)(ii). 38 U.S.C.A. § 1116 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307(a)(6), 3.309(e). In addition, the Federal Circuit has determined that a veteran is not precluded from establishing service connection with proof of actual direct causation. Combee v. Brown, 34 F.3d 1039, 1042 (Fed. Cir. 1994).
VA's Secretary has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See 75 Fed. Reg. 81,332.
Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). The Federal Circuit has clarified that lay evidence can be competent and sufficient to establish a diagnosis or etiology when (1) a lay person is competent to identify a medical condition; (2) the lay person is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau, 492 F.3d 1372 (Fed. Cir. 2007).
The Board must analyze the credibility and probative value of the evidence, account for the persuasiveness of the evidence, and provide reasons for rejecting any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996). With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. In addressing lay evidence and determining its probative value, attention is directed to both competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). See Layno, 6 Vet. App. 465, 469 (1994).
In a September 2008 written statement, the Veteran contended that he had headaches since returning from Vietnam. In a December 2009 substantive appeal (VA Form 9), the Veteran contended that he had experienced skin rashes on his body and feet since returning from Vietnam and that he had been taking over-the-counter medication to try to treat the skin disorder. The Veteran contended that his skin disorder was directly a result of exposure to Agent Orange. The Veteran contended that he experienced migraine headaches in service that began while he was in Vietnam and have continued to the present.
At the December 2013 Board hearing, the Veteran testified that, since service separation, if he did not wash his feet twice a day and put lotion on them, a red itching rash developed. The Veteran testified that he had had this rash since returning from Vietnam and that, while the rashes are mostly on his feet, they sometimes developed on his back. The Veteran testified that the skin rash had gotten worse over the years since service separation. The Veteran also testified that his migraines started when he returned from active duty service in Vietnam and had existed continuously.
The competent lay and medical evidence shows that the Veteran currently has migraine headaches and a skin disorder. A January 2004 VA treatment record notes a history of migraine headaches. A January 2005 private treatment record notes a diagnosis of an unspecified disorder of the skin and subcutaneous tissue. A January 2006 VA Agent Orange registry examination notes that the Veteran reported almost daily migraine headaches that have been going on since 1972. In a November 2008 letter, Dr. D.W. reported that the Veteran had been under his care since November 1992 with a diagnosis of common migraines.
On the question of whether the migraine headaches and skin disorder were directly incurred in service, the Board finds that the evidence is in equipoise as to whether the skin disorder and migraines began during service. The unfavorable evidence includes the silence in the Veteran's service treatment records with regard to treatment for a skin disorder or migraines and the April 1972 service separation physical that found the Veteran's skin and lower extremities clinically normal. With regard to the silence in the Veteran's service treatment records of any skin disorder or migraine headaches, the Board notes that, in cases involving combat, VA is prohibited from drawing an inference from silence in the service treatment records. VA's General Counsel has interpreted that the ordinary meaning of the phrase "engaged in combat with the enemy," as used in 38 U.S.C.A. § 1154(b), requires that a veteran "have participated in events constituting an actual fight or encounter with a military foe or hostile unit or instrumentality." VAOPGCPREC 12-99. The determination of whether a veteran engaged in combat with the enemy necessarily must be made on a case-by-case basis, and that absence from a veteran's service records of any ordinary indicators of combat service may, in appropriate cases, support a reasonable inference that he did not engage in combat; such absence may properly be considered "negative evidence" even though it does not affirmatively show that he did not engage in combat. Id.
Here, there is no indication that the Veteran's migraines and skin disorder occurred while in combat, nor did the Veteran contend otherwise. In cases where this inference is not permitted, i.e., non-combat scenarios, the Board may use silence in the service treatment records as contradictory evidence, if the service treatment records are complete in relevant part and the Board makes a finding that the injury, disease, or related symptoms ordinarily would have been recorded had they occurred. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011) (holding that "the Board erred by treating the absence of evidence as negative evidence that a veteran's skin condition was not exceptionally repugnant, because this is not a situation where silence in the records tends to disprove the fact"); AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing and applying the rule that the absence of a notation in a record may be considered if it is first shown both that the record is complete and also that the fact would have been recorded had it occurred); see also Fed. R. Evid. 803(7) (absence of an entry in a record may be evidence against the existence of a fact if it would ordinarily be recorded) (cited in Buczynski).
In this case, while the service treatment records appear to be complete in relevant part, the Board finds that the Veteran's migraines or skin disorder would not necessarily have been recorded had they occurred, as they are of a frequently recurring nature, easily amenable to self-treatment, and are symptoms of short duration (of hours or a few days) when occurring so may not require medical treatment. See Buczynski, 24 Vet. App. at 224. The Board finds that the Veteran had credibly reported that his migraine headaches and skin disorder began during service. Headaches and a rash on the feet are symptoms subject to lay observation. See Jandreau, 492 F.3d 1372; see also Buchanan, 451 F.3d at 1336. The Veteran, as a layperson, is competent to report observable events and injuries, such as experiencing headaches, and visible symptoms such as a skin rash. See Falzone v. Brown, 8 Vet. App. 398, 403 (1995). The Board finds that the Veteran's statements made while pursuing this appeal, regarding the onset of symptoms since returning from Vietnam, and treatment with over-the-counter medications for the same, are credible because the statements are internally consistent and consistent with the other evidence of record.
Having met the criteria for direct service connection for migraine headaches and a skin disorder, warranting the grant of service connection under the provisions of 38 C.F.R. § 3.303(d), for accrued benefits purposes, analysis of other potential theories for entitlement to service connection for migraine headaches and a skin disorder (i.e., on a presumptive basis due to herbicide exposure under 38 C.F.R.
§§ 3.307(a)(6), 3.309(e)) is not required, and is rendered moot. See 38 U.S.C.A.
§ 7104 (West 2002) (reflecting that the Board decides actual questions of law or fact before it).
The evidence shows that current disabilities of migraine headaches and a skin disorder exist. During the claim, the Veteran had made competent and credible
statements that the migraine headaches and skin disorder had their onset in service and had continued since. As such, resolving reasonable doubt in favor of the appellant, service connection for migraine headaches and a skin disability are warranted, for accrued benefits purposes. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102.
ORDER
An initial disability rating of 50 percent for PTSD, but no higher, for accrued benefits purposes, is granted.
Service connection for a skin disorder, for accrued benefits purposes, is granted.
Service connection for migraine headaches, for accrued benefits purposes, is granted.
____________________________________________
J. Parker
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs